The Unification of Judicial Jurisprudence Decision of the Council of State Regarding the Intervener’s Ability to Apply for Legal Recourse on Its Own
The issue of whether the intervener has the right to apply for legal recourse in administrative cases, which has long led to contradictions and different interpretations between the decisions of the chambers and boards of the Council of State, has been clarified.
Through the decision numbered E.2021/4 K.2023/1 (Decision) of the Unification Board of the Council of State (Unification Board), it has been determined that the intervener may apply for legal recourse in administrative lawsuits in the event that the party with whom it intervenes does not apply for legal recourse, provided that it does not contradict the transactions and statements of the persons with whom it intervenes. Thus, the divergence of jurisprudence between the chambers and boards of the Council of State has been eliminated.
In the Decision, the past decisions of the Council of State Chambers, based on various grounds, in favour of and against the aforementioned possibility were compiled and it was concluded that the jurisprudence should be unified.
In his opinion on the merits, the Chief Public Prosecutor of the Council of State stated that in view of the fact that the provision in Article 57 of the abrogated Code of Civil Procedure No. 1086 stating that the intervener shall act together with the party with whom it intervenes is amended by Article 68 of the Code of Civil Procedure No. 6100 (CCP) and the provision in the abrogated Council of State Law No. 521 stating that one of the parties may file an appeal case has been amended by Article 46 of the Administrative Procedure Law (ALL) which stipulates that the decision may be appealed within 30 days of notice, an opinion regarding the right of third parties to apply for legal recourse is formed in the doctrine. However, it is stated that the term “party” continues to be stated in Articles 349 and 366 of the CCP and Article 48 of the ALL, therefore it is stated that third parties do not have the right to apply for legal recourse.
Evaluating the institution of intervention in the lawsuit within the scope of the freedom to seek rights, the Unification Board of the Council of State stated that Article 36, paragraph 1 of the Constitution stipulates that everyone has the right to a fair trial by claim and defence as claimant or defendant before the judicial authorities by making use of legitimate means and ways. In this framework, the Council of State based on the reasoning that since the subject of the right to a fair trial is “everyone”, the intervener, who is positioned next to the party, should also be able to benefit from the rights to a fair and equitable trial, access to the court, to request judicial protection and to be heard, also stated that Article 31 of the Code of Administrative Procedure refers to the Code of Civil Procedure, and concluded that, within this scope, the intervener may apply for legal recourse against the decision alone, as long as it is not contrary to the actions or statements of the party with whom it has intervened.
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